The legislature is back for its post-election, “lame duck” business when bills are given one last chance to pass before the process begins anew in January. Over the next few weeks, committees in both houses are expected to meet once or twice, punctuated by three voting sessions of the Senate and Assembly, each of which adjourn following at the conclusion of business on January 11th.
Ambulatory Facility Right to Referral
S-787 (Codey, D – Essex) / A-1933 (Conaway, D – Burlington)
OLS Summary: Requires single operating-room facilities to register with DHSS, permits practitioners to refer patients to ambulatory surgery facilities in which practitioners have financial interest under certain circumstances
Reacting to a Superior Court finding that a 1991 law prohibits physicians from referring patients to ambulatory facilities they own, the Medical Society dedicated the majority of our attention to seeking legislative relief to restore the right of referral for these physicians and their patients. While the issue itself was fairly unambiguous, the debate was complicated by the question of how to treat self-referral to single room surgical practices which are commonly not licensed. Thanks to a determined effort by MSNJ and our friends in the legislature, efforts to require licensure (and subsequent taxation) of these practices was defeated, and a final bill preserving patient choice was enacted by Governor Corzine on March 21, 2009.
Patient Safety Indicators
S-2471 (Vitale D – Middlesex) / A-3633 (Conaway D – Burlington)
OLS Summary: Requires DHSS to report certain patient safety indicators on a hospital by hospital basis and prohibits hospitals and physicians from charging for certain medical errors
In response to a nationwide initiative, several legislators introduced bills in late 2008 that sought to extend the Medicare “no-pay” rules, which refuse payment for care associated with certain conditions believed to be avoidable, to the private sector by prohibiting billing in certain instances. Concerned with the unpredictability of CMS and the potential for abuse by payers, MSNJ worked with our friends at the Hospital Association the limit and specify to “no-bill” conditions. More importantly, MSNJ successfully convinced the legislature that affixing blame for these events on individual physicians was too impractical, and the limitations on physician billings were stricken from the legislation in Assembly committee. The improved bill was signed by Governor Corzine on August 31, 2009.
Involuntary Outpatient Commitment
S-735 (Codey, D – Essex) / A-1618 (McKeon, D – Essex)
OLS Summary: Establishes involuntary commitment to outpatient treatment for person in need of involuntary commitment to treatment
After a half-decade of debate over whether or not New Jersey should be the 43rd State to allow courts to involuntarily commit persons in need of mental health treatment to an outpatient program, the legislature finally seemed poised to send a bill to the Governor’s desk in the 2009 – 2008 session. The New Jersey Psychiatric Association, however, expressed grave concerns over the “single standard,” meaning those individuals committed to an outpatient setting would meet the same dangerousness standard as those committed to inpatient care. Joined by MSNJ, NJPS successfully lobbied for late amendments to the bill which strengthened the role of the physician in determining the appropriate setting; the bill was also amended to slow its implementation and allow for regulatory improvements. It was signed into law on August 11, 2009.
30 X 3 Rx Legislation (Allowing 90 Day Supply of Schedule II CDS)
S-2550 (Weinberg D-37; Codey D-27) / A-3799 (Conaway D-7)
OLS Summary: Permits physicians to issue multiple prescriptions for total of up to 90-day supply of Schedule II drugs
This legislation revises New Jersey statutes to allow a physician to provide three consecutive post-dated prescriptions for 30 day supplies of Schedule II drugs such as Ritalin or Morphine. MSNJ supported this bill along with the New Jersey Psychiatric Association, the Pain Management Society, the American Cancer Society, and other specialists who routinely treat patients that demonstrate long term stability on certain drug regimens.
It was signed into law on November 23 and will be effective on March 1. MSNJ will be working closely with the State Board of Medical Examiners to ensure that needed regulations are in place by the effective date.
MSNJ “LAME DUCK” PRIORITIES:
Assignment of Benefits
S-114 (Weinberg D-37)/A-132( Huttle D-37)
OLS Summary: Requires managed care plans to pay health care claims based on assignment of benefits
Legislation requiring health insurers to remit a patient’s reimbursement directly to an out-of-network provider has passed the Senate and is now pending before the Assembly Financial Institutions and Insurance Committee. Providers and insurers agree that the “assignment issue” is used by the payer community as a tool to encourage network participation, and the debate is now centered on the appropriateness of that tactic and whether or not it presents a demonstrable harm to consumers.
MSNJ supports this legislation, and has made it our top priority in the concluding weeks of this session.
***The Assembly Financial Institutions and Insurance Committee will have one last chance to release the bill on January 4, after which it could be considered by the full Assembly on the 7th or 11th***
Bill to Increase Public Participation in Non-Profit Conversion
S-2532 (Weinberg D – Bergen)/A-3729 (Huttle D – Bergen)
OLS Summary: Requires additional public participation and health impact "fairness analysis" as conditions of conversion of health service corporation to domestic stock insurer
These bills were introduced in reaction to the application by Horizon Blue Cross Blue Shield to convert to a for profit company. The analysis, as amended in Assembly committee, would demand important questions not necessarily required by the current conversion statute such as assessing the impact of the conversion on provider contracts, current provider networks, networks, provider compensation, and claims processing and payment.
MSNJ supports this bill, which passed the Senate Commerce Committee in late May and the Assembly on the last day of business in the Assembly. Both bills are now pending before the Senate, which must approve the measure before the Governor can sign it.
Three Bill Package to Improve Timeliness of Patient Placement for Mentally Ill
A-3582, A-3583 & A-3584 (Cryan, D – Union) / S-2444, S-2445, S-2446 (Codey, D – Essex)
This three bill package, which seeks to reduce the waiting period for transferring the acutely mentally ill from a hospital emergency room by requiring the Department of Human Services to establish procedures for assisting hospitals with patient placement, standardize admission protocols and medical clearance criteria, and perform a statewide needs assessment, respectfully, has been steadily progressing through the legislative process, and all three bills are now pending Senate consideration having passed the Assembly and been released by the Senate Health, Human Services, and Senior Citizens.
MSNJ supports all three bills, and stand with the New Jersey Hospital Association and the New Jersey Psychiatric Association in their dedication to address this unreported crisis of patient care where some of our most vulnerable patients are literally left to languish in emergency room stretcher for days.
PENDING BILLS THAT NEED IMPROVEMENT
Compassionate Use of Marijuana Act
S-119 (Scutari, D – Union) / A-804 (Gusciora, D – Mercer)
The Assembly Health Committee in June amended and released legislation allowing qualified patients with certain debilitating conditions to use marijuana. The committee amendments address several significant concerns shared by physicians including:
• Limiting the qualifying diagnoses and reducing the distribution to a limited number of licensed Alternative Treatment Centers, and eliminating the third party care giver status which would have allowed other individuals to possess the drug on a patient’s behalf
• Requiring a physician’s recommendation to include written instructions concerning the total amount of usable marijuana that a patient may be dispensed, in weight, in a 30-day period, which amount shall not exceed one ounce. Physicians may recommend up to three, post dated, 30-day supplies in a manner similar to that established in A-3799 (see above).
Scope of Practice: Expansion of Chiropractic
S-565 (Sweeney, D – Salem) / A-2029 (Watson-Coleman, D – Mercer)
OLS Summary: Permits revised methods of treatment for chiropractors and establishes continuing education requirements
After several years of debate before legislature, and a corresponding court battle over the scope of chiropractic, a draft committee substitute of S-565 / A-2029 was circulated that would allow chiropractors to “diagnose, adjust, and treat the articulations of the spinal column and other joints, articulations and soft tissue structures.” The controversy over this expansion centers on the interpretation of “diagnose,” as well as the dispensing of the current requirement that any chiropractic treatment of “other joints” be limited to conditions clinically related to conditions of the spine.
MSNJ opposed this bill in committee and worked closely with its sponsors to ensure that patients in need of medical attention are referred to the appropriate healthcare provider. The bill is expected to be significantly changed in Senate committee, although most observers do expect some version of this bill to ultimately pass.
Adopted Rule N.J.A.C. 11:1-7.3 - Reporting of High / Low Awards
In response to a request from MSNJ, the Department of Banking and Insurance has adopted regulations clarifying what information should be included in the State Board of Medical Examiners physician profiles pursuant to the 2003 New Jersey Health Care Consumer Information Act. The profiles, which track the outcomes of medical malpractice lawsuits, are made available to the public on the Division of Consumer Affairs website. The Department’s proposal would clarify that the physician profile website should not include payments made pursuant to so-called “high/low” agreements when the physician defendant was found to be not liable.
In a high/low agreement, an insurance company agrees to pay a plaintiff the “low” amount even if the sued physician is exonerated. MSNJ had argued that these payments should not be included in the profiles as they lead the casual observer into believing a physician had committed a medical error when none had occurred.
PROPOSED REGULATIONS – CLOSED COMMENT PERIOD
Proposed Regulation 2009-170: Fair Contracts and Network Transparency
The Department of Banking and Insurance has proposed a new rule to prescribe in detail what must specified in a contract between and insurer and a provider, while disallowing certain practices such as mandatory binding-arbitration, unilateral amendments, passive contract renewal and “most favored nation” practices. Specified criteria include: fee schedules, contract termination processes, and a complete and exclusive statement of core terms. The proposed new rule also addresses “phantom networks” by requiring quarterly directory updates, and provides and requires provider credentialing to be complete within 90 days.
MSNJ supports the Department’s proposal and submitted comments to that effect on August 14.
Proposed Regulation 2009-207: PIP Provider Networks and Dispute Resolution
The Department of Banking and Insurance has proposed regulatory amendments that would allow auto insurers to establish voluntary networks of ambulatory surgery centers and provide financial incentives for consumers to seek care in participating facilities. The incentives would be in the form of waived deductibles and copays established under rules currently allowing such charges for durable medical equipment and prescription drugs. The same proposal has some beneficiary provisions to it, however, such as expedited resolution of medical necessity disputes and prohibitions on precertification requirements for the evaluation and management visits of new patients.
MSNJ supports the dispute resolution and precertification proposals, while opposing the unnecessary establishment of PIP provider networks. Comments to this effect were submitted on September 4.
Proposed Regulation 2009-228: Prompt Pay Revision
The Department of Banking and Insurance has proposed amendments to the “prompt pay” regulations first adopted in 2003. The proposal comes in response to a petition by the Association of Health Plans voicing concerns over the use of the current regulations by some healthcare providers to compel payment for services not covered in a patient’s plan. The proposal attempts to address these concerns by changing the regulations to more closely track the 2005 Health Claims Processing and Payment Act, but organized medicine has objected to the changes arguing that insurers should inform providers of such coverage issues so that responsible parties can be billed in a timely fashion.
MSNJ has filed comments objecting to the proposal’s ambiguity with respect to a payer’s responsibility to inform providers that services are not covered in a plan.